People v. Herron

• Decision Date: 11 September 1991
• Docket Number: No. 2-89-0204,2-89-0204
• Citation: 578 N.E.2d 1310,161 Ill.Dec. 664,218 Ill. App. 3d 561
• Parties: , 161 Ill.Dec. 664 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas D. HERRON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1310

578 N.E.2d 1310

218 Ill.App.3d 561, 161 Ill.Dec. 664

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Thomas D. HERRON, Defendant-Appellant.

No. 2-89-0204.

Appellate Court of Illinois Second District.

Sept. 11, 1991.

G. Joseph Weller, Deputy Defender, Ingrid L. Moller(argued), Office of the State Appellate Defender, Elgin, for Thomas D. Herron.

Charles R. Hartman, Stephenson County State's Atty., Freeport, William L. Browers, Deputy Director, State's Attys.Appellate Prosecutor, Cynthia N. Schneider(argued), State's Attys.Appellate Prosecutor, Elgin, for People.

Justice BOWMANdelivered the opinion of the court:

The defendant, Thomas Herron, was charged by information with unlawful possession with intent to deliver a controlled substance (cocaine)(Ill.Rev.Stat.1987, ch. 56 1/2 par. 1401(b)(2)) and unlawful possession of cannabis (Ill.Rev.Stat.1987, ch. 56 1/2, par. 704(a)).The jury in the case was instructed that, in addition to the above offenses, defendant was also charged with unlawful possession of a controlled substance (cocaine)(Ill.Rev.Stat.1987, ch. 56 1/2, par. 1402(b)).The jury then found defendant guilty of all three offenses.The finding of guilty for the offense of unlawful possession of a controlled substance was subsequently set aside as a lesser included offense of unlawful possession with intent to deliver.The trial court sentenced defendant to a four-year term of imprisonment, plus a $500 fine and a $135 street-value fine (Ill.Rev.Stat.1987, ch. 38, par. 1005-9-1.1) for unlawful possession with intent to deliver, and a $50 fine and a $7 street-value fine for unlawful possession of cannabis.

On appeal, defendant raises the following issues: (1) whether constructive possession of a controlled substance was established beyond a reasonable doubt; (2) whether the trial court erred when it denied defendant's motion to compelthe State to disclose a confidential informant; (3) whether the trial court erred when it denied defendant's motion for an evidentiary suppression hearing pursuant to Franks v. Delaware(1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667;(4) whether the trial court erred when it allowed certain exhibits to go to the jury; (5) whether defendant was denied a fair trial due to the improper admission of evidence of other crimes; and (6) whether defendant's conviction of unlawful possession of cannabis should be reversed because the State's expert on cannabis lacked the necessary qualifications to give his opinion.We affirm.

The information by which defendant was charged was based on evidence obtained as the result of a search of the residence at 725 South Kenwood in Freeport, Illinois, which was made pursuant to a search warrant dated December 19, 1987.Initially, defendant and his wife, Shirley Herron, who was charged with the same crimes in case No. 88-CF-30, were represented by the same privately retained counsel.Subsequently, however, a public defender was appointed to represent defendant.On October 7, 1988, the court heard motions by both defendants for an evidentiary suppression hearing pursuant to Franks v. Delaware(1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667.In support of the motion, several affidavits obtained from both defendants as well as from Shirley Herron's children, were presented, stating in pertinent part that on the day when a purchase of cocaine had allegedly taken place, no member of the household admitted anyone to the home who then purchased cocaine.The court denied the Franks motion with regard to both defendants.The trial court then granted the State's motion for a joinder of the trials.

Prior to jury selection, defendant moved to have the identity of the informant disclosed, said informant having provided probable cause for a search warrant to search the premises at 725 South Kenwood.In support of his motion, defendant asserted that the informant's identity would be crucial to his defense since the informant's testimony would establish that defendant was not present during the transaction on which the search warrant was based.The trial judge denied defendant's motion.At trial, Officer Michael Hannan of the Freeport police department testified for the State.During the course of his testimony, reference was made to statements which both defendants had made to him during the search of the residence and afterwards at the police station and which had not been disclosed by the State during discovery.After a hearing on that discovery violation, the trial court declared a mistrial.

On January 10, 1989, the State moved to sever the trials of the defendants, and the court proceeded to jury selection for the trial of defendant, Thomas Herron.The first witness to testify on behalf of the State was again Officer Hannan, who was the evidence officer on the evening of December 19, 1987.Hannan testified that Shirley Hannan opened the door to let the police in.After the police commenced their search of the premises, they found defendant asleep in an upstairs bedroom.Hannan found a "Fashion Bug" shopping bag in the kitchen, which contained a small shaving bag.Inside the shaving bag, Hannan found two butter tubs.One of the butter tubs contained wire ties, and the other contained corners cut from plastic sandwich bags.There was also a box of sandwich bags within the shopping bag as well as a small scale, a small grinder, and a toothbrush.In the living room Hannan found a makeup bag containing two 35-millimeter film canisters and a small tube of lipstick.One of the film canisters held 14 small plastic baggies cut from sandwich bags, each filled with a small amount of white powder substance and tied with a wire tie.The other canister contained four slightly larger plastic bags with a white powder substance.All were later shown to contain cocaine.

Officer Hannan also collected items located by other officers from the second floor of the house.Items found in the bedroom in which defendant was found sleeping included two small packages, one plastic and one paper, containing a small amount of plant-type substance, which were found atop the headboard of the water bed.Hannan also picked up a small plastic bag, identified as exhibit No. 6, which was closed with a wire tie and contained a small amount of a white powder substance.On top of the headboard, Hannan also found a water glass containing a larger plastic baggie with a white powder substance, a wooden pipe, a small metal pipe, a money clip, cigarette lighter flints and some razor blades.Other items found within the headboard included two revolvers and personal papers belonging to defendant and Shirley Herron.The papers confiscated by police included several utility bills in Shirley Herron's name, one loan application and one car registration in defendant's name, as well as some cigarette rolling papers and a note pad.The two revolvers, however, were not taken by the police until January 27, 1988, pursuant to a second search warrant.Defendant's car keys were also located on top of the headboard.Police also located various smoking devices on a television stand in the bedroom as well as $600 inside of a pillow case on the bed.Some currency was also found in Shirley Herron's purse.

During cross-examination, defense counsel attempted to bring out the background involved in obtaining the search warrant.The State objected to this line of questioning since it was not explored on direct examination.After Officer Hannan testified on redirect as to his belief that the residence he was searching was that of both defendant and Shirley Herron, defense counsel again sought to inquire into the background of the search warrant and the name and address shown therein.The trial court again sustained the State's objection, holding that the inquiry went beyond the scope of the redirect examination.

Next, Officer Thomas Dyra testified that, immediately entering the residence, he went to the second floor, where he found defendant asleep in the master bedroom.Dyra noticed the several items within the bookcase headboard such as a gun and a number of small plastic bags, which he pointed out to Officer Hannan.Officer Dyra also went to the Herron residence on January 27, 1988, to execute the second search warrant.Later that day, Dyra took defendant's fingerprints as part of the arrest procedure and also elicited information regarding defendant's address and other personal data as part of the booking information.Defense counsel's objection to this line of questioning was overruled, and Dyra testified that defendant had told him his address was 725 South Kenwood.

Officer Ron Kramer testified that, in his capacity as an evidence officer for the Freeport police department, he transported all of the evidence obtained from the residence to the crime lab in Rockford and back in December 1987.Kramer stated that exhibit No. 6 was transported a second time in November 1988 which is the first time it was analyzed.

Officer Robert Smith testified as to the fingerprints which he took from the water glass found in the headboard during the December 19 search.Smith compared those prints to the prints taken from defendant at the time of his arrest and found 11 matching points of identification.Smith also collected some of the items of evidence found in the master bedroom and transported them to the police department.He inspected both walk-in closets in the master bedroom and stated that one contained women's clothing while the other held clothing items belonging to an adult male.Officer Smith further testified that the only evidence of illegality found inside of the water glass, exhibit No. 5, was the smoking devices.The State then asked Smith to enumerate the items found inside of exhibit No. 5.Defense counsel objected to this line of questioning, stating that it would reveal other crimes than those with which the defendant was charged and would therefore be...